We just returned from San Francisco and the American Bar Association annual meeting. We participated in the two mornings of the Criminal Justice Section Council meetings. NACDL has a voting seat on the Council, which we have occupied for the past two years, since Albert Krieger of Miami, who had it for the five previous years, moved up to be the Chair-Elect and then Chair of the Section. Albert is a past president of NACDL and one of our favorite lawyers. [Here's a picture of the two of us after we won awards at an NACDL meeting several years ago.]

The Criminal Justice Section is composed of prosecutors, defense lawyers and judges. As you can imagine, we don't always see eye to eye. Among other duties, the Section sponsors and co-sponsors resolutions that then go to the ABA House of Delegates. If passed, the resolutions become ABA policy.

A big issue this year was a resolution by one of the corporate sections to amend the ABA's Model Rules of Conduct for lawyers in a way that would allow lawyers to reveal client confidences in a greater number of situations. The requested changes were in response to the Enron and other corporate scandals in recent years, as well as changes brought about by the Sabranes-Oxley Act.

If the changes are approved, the code would permit, but not compel, a lawyer to disclose client confidences to prevent or to mitigate "injury to the financial interests or property of another," when the lawyer's services were used to further a client's crime. In 2001, the delegates approved a narrower change, permitting a lawyer to breach client confidentiality "to prevent reasonably certain death or substantial bodily harm," but even that change was controversial.

As one corporate lawyer quoted in the Times says,

....The confidentiality privilege belongs to a client... and only the client can waive it. Besides, it is rarely a black and white question whether a client's plan is illegal, and it is not the lawyer's job to make that determination.

We didn't like the resolution and voted against co-sponsoring it. The nays carried the day. That doesn't mean it won't pass the House of Delegates, only that in its present form, the Criminal Justice Section delegates to the House of Delegates will vote against it when it comes up there for consideration.